Regina v K [2005] SBHC 80; HCSI-CRC 320 to 323 of 2004 (12 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 320 to 323 of 2004

REGINA

-v-

K & OTHERS

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Hearing: 25^th-27^th May 2005
Ruling: 12^th July 2005

Mr. Rob Barry for the Crown
Mr. Ken Averre for the Applicant

RULING

Naqiolevu J: This is an application filed by a co-accused a juvenile who I shall refer to as “K” charged with the offence of MURDER contrary to Section 200 of the Penal Code, Cap. No. 26 and Member of an UNLAWFUL Society, contrary to Section 68 of the Penal Code for the permanent stay of the proceedings pending against him in this court.

Applicant’s Case

The applicant’s case is made on the premise that the prosecution of the juvenile is an abuse of process in that it is so unfair and wrong, the court should not allow the prosecution to proceed and the continual prosecution may bring the administration of justice into disrepute.

The grounds may be summarized as follows:

1. The age of the defendant at the time of the alleged commission of the offence;

2. The prosecution is an abuse of process;

3. The prosecution should not proceed given the international nature of the Prosecution and international guidelines on the prosecution of child soldiers.

4. The prosecution should not proceed because in the event that the accused is convicted he will be sentenced to a mandatory life sentence in contravention of the Convention of the Child to which Solomon Island is a signatory.

The applicant as appear in the record of interview was born in the year 1988 and gave his age at 14-15 years old. Learned Counsel for the applicant in support of his application submit the issue of the international nature of the case. In this respect he raised the international flavour of the investigation with the involvement of the RAMSI PPF officers.

The International Conventions that are relevant and to which the Solomon Islands Government is a signatory. These are the Universal Declaration of Human Rights, the International Convention on Economic, Social and Cultural Rights. The International Convention on the Elimination of all Forms of Racial Discrimination, the Convention on the Rights of a Child, The Convention Against Torture, and other Cruel and Inhuman or Degrading Treatment or Punishment.

Issue

The issues as canvassed by the applicant that are relevant in this case are:

1. The Prosecution given the age of the accused as a juvenile;

2. K’s understanding of the proceedings;

3. Oppression and prejudice;

4. The breach of International Norm and Standards;

5. The Mandatory Life Sentence.

Learned Counsel maintain that K will not be able to participate in the trial given his age, his maturity and intellectual and emotional capacities therefore the trial will not be fair. K who has been in an adult prison since 2nd of October 2003 and will appear in court with his co-accused to raise a defence of duress as against them and be tried in a secure court with armed guards of the Australian Protective Services and be faced with the court in which the only indigenous actors are the interpreters and as such how can that be fair.

Learned Counsel further raise the point that the court should take note of the international guidelines on the prosecution of child soldiers. This he said is an international prosecution albeit within the domestic laws of this country. The prosecution he claims is oppressive and prejudicial.

Learned Counsel further submit on the mandatory Life sentence, if K is convicted of the offence he would face the only sentence the court can impose which is a life sentence , sufficient to show that this is an abuse of process.

Learned Counsel finally submit were the prosecution to continue very little will be available to protect K from the full rigours of the criminal law. If convicted he will be sentenced to life imprisonment and will be housed in an adult prison open to all of the risk associated with it. No real mechanism exists to take account of his age and needs and ultimately K should not be put through such a process and proceeding should be stayed.

Prosecution Response

The Crown in response submit the Parliament of Solomon Islands has made provision for the prosecution of juvenile offenders. Juvenile Act, Cap. 14.

The juvenile Act contemplates children being convicted of grave crime which include murder. Specific provision is made in the Act for the sentencing of children even in grave crimes such as murder. Accordingly it is clear that the law of Solomon Islands has made provisions for the special position children find themselves in when charged with an offence.

Learned Crown Counsel further submit the Penal Code provides for the age at which children become criminally responsible. The age is at most, 12 and on occasion in be as low as 8. Accordingly the prosecution of a child 13 or 14 at the time of the alleged offence is in accordance with Solomon Islands law and is specifically contemplated.

Learned Counsel submit the Constitution provide for specific legal safe guards for any person charged with criminal offence, however there is no distinction for children. The Constitution is the Supreme Law of the Solomon Islands. The Crown on the issue of unfairness submits there is no unfairness being the type that will prevent an accused receiving a fair trial in prosecuting a child.

The unfairness discussed in the authorities, in particular in R -v- Jago is that which will prevent an accused receiving a fair trial. This concept has not been and is not to be elevated, to a consideration of matters that one thought generally to be unfair. The defence the crown maintains does not point to a specific factor which results in an unfair trial for example delay resulting in the loss of a defence witness which can’t be remedied.

The accused will receive a fair trial if tried with the law and procedure of the land. It is the trial judge’s function to ensure that a fair trial occurs. It follows that there is no abuse of process as the prosecution is doing what it is entitle to do at law as it applies in the Solomon Islands. The process of the court has been respected, and there is no oppression of prejudiced to the accused.

The crown in response to the defence claim that the prosecution is international in nature submit the case is brought pursuant to the laws of Solomon Islands. The involvement of RAMSI under the Facilitation of Assistance Act, merely provides the mechanism by which the international assistance for the restoration of law and order in the Solomon Islands could be effected. This does not make this prosecution International notwithstanding the charges was laid by the Participating Police Forces. In relation to the issue on child soldier the Crown submit that argument is misconceived as the convention concerning this relates to the enlisting of child into the armed forces of a country and not an illegal para-military group.

The Convention on the rights of the child makes provision for the prosecution of child offenders under Article 37.

The Crown in response to the issue of the sentence for murder in this jurisdiction which is life imprisonment, submit this relates to the sentencing discretion and not whether someone will be released. There is a mechanism in place that is used for the release of persons imprisoned for life or other periods and relates to any person convicted of an offence. Section 45 of the Constitution, Prerogative of Mercy Juvenile Act, No. 14 Section 13-14. The legislators the Crown submit, has put into place special arrangements for children.

The Crown while not conceding to the lack of adequate detention facilities which there is no evidence of, submit this is irrelevant to the application. It is up to the government to provide such facilities and not for the court to stop a prosecution in the absence of such facilities. There has been no bail application and no evidence of abuse and the accused is in custody with his father.

The Crown in summary asks the Court to consider:

1. The Juvenile Offenders Act Cap. No. 14 make provision for the separation of children from adults whilst in prison, section 12 (3) and section 13. It is for the proper authorities to remedy the situation and not for the courts to intervene and permanently stop the prosecution.

2. The parallel Policing system does not put this prosecution into the sphere of intentional guidelines and as such they do not dictate the principles applicable to the determination of the issue.

3. International law will only become the law of an individual country if specifically incorporated into the domestic laws of the country.

4. None of the above matters individually or in combination give rise to an abuse of process which should permanently stay this trial.

5. The prosecution will not bring the administration of justice into disrepute for the reason given, for example when the Crown brings a malicious prosecution or they specifically by-pass an established procedure such as a committal.

Inherent of Jurisdiction

The inherent jurisdiction of the court to prevent the abuse of its process or a criminal prosecution which will produce an unfair trial is well established.

In Connelly-v-DPP [1964 J2 All ER 401, Lord Devlin “There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and defeat any attempt thwarting its process.”

The jurisdiction is wide and includes the power to intervene where the process is abused by one of the parties before it or the protection of an accused from a bias and prejudiced or unfair trial.

Issue of Fair Trial

It is contented by the juvenile that given his age, maturity and intellectual and emotional capacities he will not be able to participate in the trial, therefore the trial will not be fair.

The supreme law of the land the Constitution and the Juvenile Act provides the kind of protection that must be adhered to by the Court. Section 10 of the Constitution This protection is available and the juvenile will certainly be afforded the protection. The court accepts that whilst there is no distinction for children it provide the mechanism for the protection envisaged by the Constitution.

The juvenile will receive a fair trial if tried in accordance with the law and procedure of the land. This is the trial judge’s constitutional responsibility to ensure that a fair trail is afforded the juvenile at every stage of the proceedings.

Oppression and Prejudice

The defence submit that the juvenile is to a certain extent a victim and the court should take note of international guideline on the prosecution of child soldier. The court however concur with the crown that the Convention on Child Soldiers relate to the enlisting of children into the armed force of a country and not an illegal paramilitary group.

The court therefore does not consider the prosecution of the juvenile as oppressive and prejudicial.

Mandatory Life Sentence

Learned Counsel for the applicant submit that the continued prosecution of the juvenile is contrary to the provision of the Convention on the Rights of the child. Counsel refer to Articles 37, 38, 39, 40, and 41 to support his case I am of the view the Convention make provision for the prosecution of child offenders. Article 37 (a) (b) (c). The court consider that adequate protection in conformity with the provisions of the Constitution of the Solomon Islands and the Juvenile Act and indeed the relevant legislation. It is ultimately for the court and the trial judge to ensure that its procedure and processes conform with the provisions of the convention.

The court is of the view that whilst the Solomon Islands Government is signatory to the various international conventions on the rights of juvenile. The Government of the Solomon Islands has the responsibility indeed the obligation to enact legislation that will give effect to these conventions. The court notwithstanding will ensure in the absence of legislations to do all within its powers to protect juveniles within the safeguard provided by the Constitution the supreme law of the land and the Juvenile Act.

The court consider the lack of proper detention facilities for juvenile offenders as of serious concern , but ultimately it is the responsibility of the Executive and the Parliament to ensure adequate facilities for the lawful treatment and containment of juveniles are provided. The court must not stay proceedings for cases properly prosecuted before it simply because of the lack of proper detention facilities.

The court having taken into consideration the submission by counsel for the applicant and the response by the Crown and having carefully balanced the right of the applicant to a fair trial within the safeguard provided by the Constitution and existing legislations does not consider this case to be rare or exceptional in order for it to exercise its inherent jurisdiction to stay the prosecution of this trial. I therefore dismiss the application.

THE COURT